Your
Advocate
Q.
My elder brother is now serving in a non-govt. organisation. He married
one of his colleagues six years back. Unfortunately the marriage did
not work out and my brother divorced his wife by registering the divorce
in accordance with law. The copy of registered divorce was sent to his
wife. Later after almost a year my said brother took a second wife and
was happily leading his conjugal life. Soon after his second marriage
a notice from a magistrate's court was served upon my brother to appear
before the court to answer the charge of taking second wife without
permission of the first wife. We were astonished to learn how a divorced
wife may be the first wife and why one should take her permission. We
have engaged a local lawyer. He has obtained bail for my brother but
seems to be not hopeful about the result of the case. I came to know
by a reading of the complaint that the talak gives was not legal and
the charge is punishable up to one year in Muslim Family Law. If it
so happens this will bring about a disaster in our family.
We are now living in Dhaka. Some knowledgeable people here told us that
the divorce is to be given through the Mayor and the registered talak
was to be given to the chairman supxorted by affidavit sworn before
a notary public. My questions are a) a Muslim can divorce his wife by
pronouncing the word "talak" thrice without assigning any
cause and after the period of iddat he can marry again. Moreover here
it is registered. Can it be made illegal by any law? b) how legal talak
is given? c) what would be the fate of the second marriage? d) how my
brother can get rid of the case filed by hi{ ex-wife?
Your answer may help to save our family.
Ashik Aftab Bhuyan Mymensingh.
Your
Advocate: It seems that everything on your side has happened
on a vague impression of law. This law should be well publicized so
that lay people do not take avoidable sufferings. Answer to your first
question is- Muslim personal law permits talak by pronouncement
as you have understood but the Muslim Family Laws Ordinace,1961, has
made a mandatory provision requiring - any man who wishes to divorce
his wife shall, as soon as may be after the pronouncement of talak
in any form, give the chairman notice in writing of his having done
so , and shall supply a copy thereof to the wife. Violation of this
law is made punishable with imprisonment for a period no| exceeding
one year and also liable to nine not exceeding ten thousand taka. By
legisla|ive enactment the procedure of Talak is laid down to
be followed by every Muslim. This is a special law made for the purpose
and will prevail over the general law, that is, our personal law. And
its violation is made punishable. Therefore, we as subjects of the state
are bound to follow the prevailing law of the land or to take the consequences.
Since the talak was not given in accordance with law the marriage
tie legally subsisted and your brother's fist wife took the opportunity
of violation of law in this regard. If there is a subsisting wife permission
of the Arbitration Council must be taken for taking a second wife.
With
regard to your second question it should be remembered that talak
in any form must be effected through the local UP-Chairman and in case
of Paurashabha and City Corporation the Paurashabha Chairman and the
Mayor respectively. The affidavit sworn before any authority and prior
registzation of talak by the Marriage registrar are not mandatory. Those
are mere extra-legal formalities developed by practices. They by themselves
do not validly dissolve a marriage unless the matter do not brought
to the notice of the Chairman or the Mayor as the case may be. Once
the notice of talk is given to the chairman with a copy of the same
to the wife it takes effect after expiry of 90 days from the date of
its receipt by the chairman and in case of pregnancy of the wife after
pregnancy ends provided the steps towards rmconciliation jy the Chairman
fail. The reply to your third question is the second marriage would
not be void by reason merely of contracting it in volition of law nor
the child, if born, would be illegitimate. But such violation is punishable
as provided under law. Finally the way ou| for your brother. It is difficult
at this stage and without having access to the records of the case to
pass any opinion about its merit. Please take care that a good lawyer
is engaged.
Your
Advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
Corresponding
with the Law Desk
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